A Mumbai-based Christian couple refused divorce by a family court on the grounds that they had not lived separately for the minimum period set by by the Indian Divorce Act, have finally got their marriage annulled.
Although the Bombay High Court decision comes only a month short of the minimum period of two years of “living separately” set by Section 10A of the Act for mutual separation, lawyers said the high court allowing the petition challenging the two-year period will set a precedent for lower courts in Maharashtra.
Christian couples have to live separately for double the time before they can file for divorce, as compared to several other communities that have a one-year wait.
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“The petition is allowed. The order passed by the Family Court is quashed and set aside. The marriage between the petitioner is dissolved by mutual consent,” said Justice C V Bhadang.
The couple had registered their marriage in 2013 according to the Indian Christian Marriage Act in Mumbai. Since June 2013, within months of their marriage, the couple had been living separately. They filed a petition seeking divorce in a family court in 2014.
The petition being filed “only after a year” of marriage, the divorce petition was not allowed. The couple then approached the high court. Advocate Mrunalini Deshmukh said the high court allowing the petition could set a precedent for lower courts in Maharashtra. The Kerala and the Karnataka high courts had passed similar judgements earlier.
“If this has been allowed by the Bombay High Court, it could set a precedent in trial courts also,” said advocate Edith Dey.
The court had earlier asked the advocate appearing for Union of India, Rui Rodrigues to file a reply on whether the Central government has challenged the judgments of the Kerala and Karnataka high courts which had read down the period of two years to one year “to save the said provision from the unconstitutionality” of violating the fundamental right to equality.
Asked if the government intends to challenge the judgments of the Kerala and Karnataka high courts, the Bombay High Court was informed that the Union law ministry had not responded to queries about this.
The Kerala High Court in its judgment had held that the clause “have been living separately for a period of two years or more” in Section 10 A (1) of the Indian Divorce Act, 1869, is unconstitutional as it violates fundamental right to equality, because other communities get divorce earlier. To avoid this unconstitutionality, the period of two years was read down to one year.
In Karnataka too, Christian couples’ mandatory period of staying separately before seeking divorce by mutual consent is one year, following a judgement by its high court. The Supreme Court is also considering this issue at present.
Deshmukh added, “A similar issue is also being considered by the Supreme Court. The High Court order will have to be studied in terms of reasoning given.”
“If a couple had decided to divorce, it is only fair to have a law equal with the law of other communities. Christians should also be allowed to have a separation period of one year before applying for divorce by mutual consent at par with other communities. The two year separation period may have been kept with the hope that a couple may reconcile, “ added Dey.